Title: Article 13
Volume: Volume VII (4th November 1948 to 8th January 1949)
Date: 01/12/1948
Participants: Shri Damodar Swarup Seth, Mr. Mihir Lal Chattopadhyaya, Prof. K. T. Shah, Mr. Nazirudin Ahmad, Mr. H. V. Kamath, Mr. Mohammed Ismail Sahib, Shri C. Subrahmanyam, Mr. Mohammed Ismail Sahib, Prof. K. T. Shah, Sahib Bahdur Mahboob Ali Baig, Mr. K. M. Munshi, Sardar Hukum Singh, Sahib Bahdur Mahboob Ali Baig, Pandit Thakur Dass Bhargava, Dr. B. R. Ambedkar, Mr. Mohd. Tahir, Rai Bahadur Syamanandan Sahaya, Dr. B. R. Ambedkar, Sardar Hukum Singh, Mr. Syed Abdul Rouf, Mr. Mohd. Tahir, Dr. B. R. Ambedkar, Dr. B. R. Ambedkar, Mr. Mohd. Tahir
Volume: Volume VII (4th November 1948 to 8th January 1949)
Date: 01/12/1948
Participants: Shri Damodar Swarup Seth, Mr. Mihir Lal Chattopadhyaya, Prof. K. T. Shah, Mr. Nazirudin Ahmad, Mr. H. V. Kamath, Mr. Mohammed Ismail Sahib, Shri C. Subrahmanyam, Mr. Mohammed Ismail Sahib, Prof. K. T. Shah, Sahib Bahdur Mahboob Ali Baig, Mr. K. M. Munshi, Sardar Hukum Singh, Sahib Bahdur Mahboob Ali Baig, Pandit Thakur Dass Bhargava, Dr. B. R. Ambedkar, Mr. Mohd. Tahir, Rai Bahadur Syamanandan Sahaya, Dr. B. R. Ambedkar, Sardar Hukum Singh, Mr. Syed Abdul Rouf, Mr. Mohd. Tahir, Dr. B. R. Ambedkar, Dr. B. R. Ambedkar, Mr. Mohd. Tahir
Article 13
Mr.
Vice-President: We shall now take up article 13 for consideration.
Shri Damodar Swarup Seth (United Provinces: General): Sir, I beg to move:
“That for article 13,
the following be substituted:
‘13. Subject to public
order or morality the citizens are guaranteed—
(a) freedom of speech and
expression;
(b) freedom of the press;
(c) freedom to form
association or unions;
(d) freedom to assemble
peaceably and without arms;
(e) secrecy of postal,
telegraphic and telephonic communications.
13-A. All citizens of
the Republic shall enjoy freedom of movement throughout the whole of the
Republic. Every citizen shall have the right to sojourn and settle in anyplace
he pleases. Restrictions may, however, be imposed by or under a Federal Law for
the protection of aboriginal tribes and backward classes and the preservation
of public safety and peace.’ “
Sir, article 13, as at
present worded, appears to have been clumsily drafted. It makes one significant
omission and that is about the freedom of the press. I think, Sir, it will be
argued that the freedom is implicit in clause (a), that is, in the freedom of
speech and expression. But, Sir, I submit that the present is the age of the
Press and the Press is getting more and more powerful today. It seems desirable
and proper, therefore, that the freedom of the Press should be mentioned
separately and explicitly.
Now, Sir, this article 13
guarantees freedom of speech and expression, freedom to assemble peaceably and
without arms, to form association and unions, to move freely throughout the
territory of India, to sojourn and settle in any territory, to acquire and hold
and dispose of property, and to practise any profession or trade or business.
While the article guarantees all these freedoms, the guarantee is not
to affect the operation of any existing law or prevent the State from
making any law in the general interests of the public. Indeed, Sir, the
guarantee of freedom of speech and expression which has been given in this
article, is actually not to affect the operation of any existing law or prevent
the State from making any law relating to libel, slander, defamation, sedition
and other matters which offend the decency or morality of the State or
undermine the authority or foundation of the State. It is therefore clear. Sir,
that the rights guaranteed in article 13 are cancelled by that very section and
placed at the mercy or the high-handedness of the legislature. These guarantees
are also cancelled, Sir, when it is stated that, to safeguard against the
offences relating to decency and morality and the undermining of the authority
or foundation of the State, the existing law shall operate. This is provided
for in very wide terms. So, while certain kinds of freedom have been allowed on
the one hand, on the other hand, they have been taken away by the same article
as I have just mentioned. To safeguard against “undermining the authority or
foundation of the State” is a tall order and makes the fundamental right with
regard to freedom of speech and expression virtually ineffectual. It is
therefore clear that under the Draft Constitution we will not have any greater
freedom of the press than we enjoyed under the cursed foreign regime and
citizens will have no means of getting a sedition law invalidated, however
flagrantly such a law may violate their civil rights.
Then, Sir, the
expression ‘in the interests of general public’ is also very wide and will
enable the legislative and the executive authority to act in their own way.
Very rightly, Sir, Shri S. K. Vaze of the Servants of India Society while
criticising this article has pointed out that if the mala fides of Government are
not proved — and they certainly cannot be proved — then the Supreme Court will have
no alternative but to uphold the restrictive legislation. The Draft
Constitution further empowers the President, Sir, to issue proclamations of
emergency whenever he thinks that the security of India
Now, Sir, to suspend civil
liberties is tantamount to a declaration of martial law. Even in the United States United States , it will be clearly seen that the
limitations embodied in the Draft Constitution are far wider than those
provided in the United
States
Mr. Vice-President: Do
I understand that amendment No.441 will not be moved? I shall not allow any
discuss on but I shall put it to vote. Do I understand that the mover does not
intend to move this amendment.?
(Amendment 441 was not
moved.)
(Amendments No. 413 and
No. 414 were not moved.)
Mr. Vice-President: Amendments
Nos. 415 and 418. They are the same. I will allow amendment No. 415 to be
moved. It stands in the names of Pandit Lakshmi Kanta Maitra and others,
including Mr. Kamath.
“That in clause (1)
of article 13, the words ‘Subject to the other provisions of this article’ be
deleted.”
Various provisos have been
mentioned in this Section in clauses (2), (3), (4), (5) and (6). Therefore the
words “subject to the other provisions of this article” are unnecessary.
Mr. Naziruddin
Ahmad (West Bengal : Muslim): I submit
that this is a drafting amendment.
Mr. Vice-President: Proceed,
Mr. Chattopadhyay.
Shri Mihir Lal
Chattopadhyay: Moreover, this section deals with Fundamental Rights
and there should be positive enumeration of these rights and privileges at the
beginning and it should not begin with provisos. Each proviso should in the
natural course come afterwards. I therefore move this amendment.
(Amendment
No. 419 was not moved.)
Mr. Vice-President: Then
we come to amendment No. 416 standing in the name of Prof. K. T. Shah.
"That in clause (1)
of article 13, for the words, “the other provisions of this article” the words ‘this
constitution and the laws there under or in accord there with at any time in
force’ be substituted, and after the words all citizens shall have’ the words ‘and
are guaranteed’ be added.”
The article, as amended,
would read:
“Subject to this
Constitution and the laws there under or in accord there with at any time in
force, all citizens shall have and are guaranteed the right” etc.
Sir, my purpose in
bringing forward this amendment is to point out that, if all the freedoms
enumerated in this article are to be in accordance with only the provisions of
this article, or are to be guaranteed subject to the provisions of this article
only, then they would amount more to a negation of freedom than the promise or
assurance of freedom, because in everyone of these clauses the exceptions are
much more emphasised than the positive provision. In fact, what is given by one
right hand seems to be taken away by three or four or five left hands; and
therefore the article is rendered nagatory in any opinion.
I am sure that was not the
intention or meaning of the draftsmen who put in the other articles also. I
suggest therefore that instead of making it subject to the provisions of this
article, we should make it subject to the provisions of this Constitution. That
is to say, in this Constitution this article will remain. Therefore if you want
to insist upon these exceptions, the exceptions will also remain. But the
spirit of the Constitution, the ideal under which this Constitution is based,
will also come in, which I humbly submit, would not be the case, if you emphasise
only this article. If you say merely subject to the provisions of this article,
then you very clearly emphasise and make it necessary to read only this article
by itself, which is more restrictive than necessary. I am aware it might be
said that, under the rules of interpretation, the whole Constitution will have
to be read together and not only one clause of it. If so, I ask where is the
harm in then saying, as you have said in many other articles, “subject to
the provisions of this Constitution”? and “subject also to the laws in force at
any time and the laws there under”? Those laws which have not been abrogated or
abolished under this article or any other article will be enforced. Those new
laws which you make in accordance with this article will also be enforced, so
that all the safeguards that you wish to introduce, and which you may wish to
maintain against any abuse of the freedoms guaranteed or granted by this
Constitution, will be available.
Why then should we draw
attention and emphasize only this article, which is more full. I repeat, of
exceptions and delimitations of freedom than of freedom itself? The freedoms
are curtly enumerated in 5.6 or 7 items in one sub-clause of the article. The
exceptions are all separately mentioned in separate sub-clauses. And their
scope is so widened that I do not know what cannot be included as exception to
these freedoms rather than the rule. In fact, the freedoms guaranteed or
assured by this article become so elusive that are would find it necessary to
have a microscope to discover where these freedoms are, whenever it suits the
State or the authorities running it to deny them. I would, therefore, repeat
that you should bring in the provisions of the whole Constitution, including
its preamble, and including all other articles and chapters where the spirit of
the Constitution should be more easily and fully gathered than merely in this
article, which, in my judgment, runs counter to the spirit of the Constitution.
Somebody described yesterday the Constitution as a paradise for lawyers. All
written Constitutions, and even un-written ones, do admit themselves to legal
chicanery of a very interesting type. Constitutions of Federal States are
generally more so. But whether or not it was deliberately intended to be so,
this particular Draft seems to be a very fertile ground for legal ingenuity to
exercise. And that will, of course, be at the expense of the Community. Whether
the State wins or loses, the public, the country in any case, will lose to one
small section, that of the legal practitioners.
I also suggest that it
would not be enough to enumerate these freedoms, and say the citizen shall have
them. I would like to add the words also that by this Constitution these
freedoms are guaranteed. That is to say, any exception which is made, unless
justified by the spirit of the Constitution, the Constitution as a whole and
every part of it included, would be a violation of the freedoms guaranteed
hereby.
For instance, sub-clause
(5) uses such a wide expression as to make anything come within the scope of
the exception, and suffice to deny the practical operation of the freedoms that
by one big clause you are supposed to guarantee. I, therefore, think that it is
necessary to make the substitution I have suggested in this article, that the
words “this Constitution and the laws there under or in accord there with at
any time in force” may be substituted for the words “the other provisions of
this article” and after the words “all citizens shall have” the words “and are
guaranteed” be added. I hope the amendment will prove acceptable to the House.
Mr. Vice-President: Amendment
Nos. 417 and 418 are of similar import. I can allow No. 417 to be moved. This
amendment stands in the name of Mr. Lari.
An Honourable Member: He
is not in the House.
Mr. Vice-President: Then
amendment No. 418 which stands in the name of Shri Mukut Behari Lal Bhargava.
The
amendment was not moved.
Mr. Vice-President: Amendment
Nos. 420, 421, and 424 are of similar import and I suggest that the House
should consider them together. I suggest that amendment No. 421 be moved. This
stands in the name of Prof. K. T. Shah.
Prof. K. T. Shah: Mr.
Vice-President, Sir, I beg to move:
“That in sub-clause
(a) of clause (1) of article 13,after the word ‘expression’; the words ‘of
thought and worship; of press and publication;’ be added.”
so that the article as
amended would read:
“Subject to the other
provisions of this article, all citizens shall have the right—
(a) to freedom of
speech and expression; of thought and worship; of press and publication;”
In submitting this
amendment, I must confess to a feeling of amazement at the omission whether it
is by oversight or deliberate. I do not know of these very essential and
important items in what are known as Civil Liberties. The clause contents
itself merely with the freedom of speech and of expression. I do not know what
type of freedom of speech the draftsman had in mind when he adds to it the
freedom of expression separately. I thought that speech and expression would
run more or less parallel together. Perhaps “expression” may be a wider term,
including also expression by pictorial or other similar artistic devices which
do not consist merely in words or in speech.
Allowing that is the
interpretation, or that is the justification for adding this word “expression”,
I still do not see why freedom of worship should have been excluded. I am not
particularly a very worshipful man myself. Certainly I do not indulge in any
overt acts of worship or adoration. But I think a vast majority of people feel
the need and indulge in acts of worship, which may often be curtailed or be
refused or in other words be denied unless the Constitution makes it expressly
clear that those also will be included. All battles of religion have been
fought—and it must be very well known to the draftsman that they are going on
even now—in connection with the right of free worship. The United States itself owes its very origin to the
denial of freedom of worship in their original home to the Fathers of the
present Union some 300 odd years ago. That is
why in most modern constitutions, the freedom of worship finds a very clear
mention. I certainly feel therefore that this omission is very surprising, to
say the least. Unless the Drafting Committee is in a position to explain
rationally, is in a position to explain effectively why this is omitted, I for
one would feel that our Constitution is lacking and will remain lacking in a
most essential item of Civil Liberties if this item is omitted.
The same or even a more
forceful logic applies to the other “freedom of the press, and freedom of
publication.” The freedom of the press, as is very well known, is one of the
items round which the greatest, the bitterest of constitutional struggles have
been waged in all constitutions and in all countries where liberal
constitutions prevail. They have been attained at considerable sacrifice and
suffering. They have now been achieved and enshrined in those countries. Where
there is no written constitution, they are in the well established conventions
or judicial decisions. In those which have written constitutions, they have
been expressly included as the freedom of the press.
Speaking from memory, I am
open to correction, although I think it would not be necessary, even the United
Nations Charter gives good prominence and special mention of freedom of the
press. Why our draftsmen have omitted that, I find beyond me even to imagine. I
dare say they must have very good reasons why the freedom of the press has not
found specific mention in their draft. But, unless and until they give the
reasons and explain why it has been omitted, I feel that an amendment of the
kind I am proposing is very necessary.
The Press may be liable to
abuse; I feel there may have been instances where the press has gone, at least
in the mind of the established authority, beyond its legitimate limits. But any
curtailment of the liberty of the press is, as one of the present Ministers,
who was then a former non-official member, called, a “black Act,” in the last
but one session of the legislature when there was an attempt to curtail the
liberty of the press under certain circumstances. This endeared him at least so
much to me that in spite of many differences with him. I felt he had done
yeoman service, though singly opposing even at the third reading of the Bill.
With the presence of such
men in this House, I am amazed that in this Constitution a very
glaring omission has taken place in the draft by leaving out the freedom
of the press. I cannot imagine, why these draftsmen, so experienced and so
seasoned, should have felt it desirable to leave out the freedom of the press,
and leave it to the charity of the administrators of the Constitution when
occasion arose to include it by convention or implication, and not by express
provision. Freedom of the press, I repeat, is apt to be misunderstood, or, at
any rate, apt to be regarded as licence which you may want to curtail. There are
many ways by which laws can be passed or laws can be administered whereby you
can regard the liberty as verging upon licence and as such to be curtailed. To
omit it altogether, I repeat, and Ire peat with all the earnestness that I can
command, would be a great blemish which you may maintain by the force of the
majority, but which you will never succeed in telling the world is a
progressive liberal constitution, if you insist on my amendment being rejected.
Mr. Vice-President
: Amendment No. 420. Is it pressed?
(Mr.
Naziruddin Ahmad rose in his seat to speak.)
You need not come. I only
want to know whether you intend to press this, in which case, I shall put it to
the vote.
Mr. Naziruddin
Ahmad : Sir, I wish to speak on this.
Mr. Vice-President: You
can speak in the course of the general discussion, provided, of course, you get
a chance.
You have given me the
power to rule out; take yours eat, please; it will be put to the vote.
Mr. Naziruddin
Ahmad: Without any debate, Sir?
Mr. Vice-President: Amendment
No. 422.
(Shri
Lakshminarayan Sahu came to the rostrum.)
You are not allowed to
speak. Do you want to press it?
Shri
Lakshminarayan Sahu (Orissa: General): Yes, Sir.
(Amendment
No. 424 was not moved.)
Mr. Vice-President: Amendment
No. 423 is disallowed.
(Amendment
No. 425 was not moved.)
Mr. Vice-President: Amendment
No. 426.
Giani
Gurmukh Singh Musafir (East Punjab :
Sikh): *[I do not wish to move my amendment, as it is covered by clause
(1) of the Explanation to article 19.]*
Mr. Vice-President: I
cannot follow what he is saying.
An Honourable
Member: He is not moving the amendment.
(Amendment
No. 427 was not moved.)
Mr. Vice-President: Amendments
numbers 428, 429, 430 and 432 are of similar import and are therefore to be
considered together. Amendment No. 428 may be moved.
Mr.
Naziruddin Ahmad : Sir, am I to move all the amendments
and speak, on all of them?
Mr. Vice-President: On amendment No. 428 only.
Mr.
Naziruddin Ahmad: Will all the others be put to the vote?
Mr. Vice-President: Of course.
Mr.
Naziruddin Ahmad: Sir, I beg to move:
“That
at the end of sub-clause (c) of clause (1) of article 13, the words ‘for any
lawful purpose’ be inserted.”
The Honourable Shri K. Santhanam (Madras
Mr. Naziruddin Ahmad: I had carefully thought about this objection,
Sir, and I was just going to mention the difficulty of that view. That is the
only reason why I have come here to move the amendment.
Mr. Vice-President: Proceed.
Mr. Naziruddin Ahmad: Sir, all that I wish to convey by means of this
amendment is that the people’s freedom of speech, freedom of forming
associations or unions, and moving freely throughout the territory and residing
in any place, should be subject to the condition that they do it for a lawful
purpose.
So far as Mr. Santhanam is concerned, he does not quarrel with the principle.
His contention is that these conditions are sufficiently expressed in the
clauses (2), (3), (4), (5) and (6). I shall draw the attention of the House and
particularly of Mr. Santhanam to sub-clause (b) of clause (1) of article 13. It
gives the right to assemble ‘peaceably and without arms’. The words ‘peaceably
and without arms’ should be objectionable from the point of view of Mr.
Santhanam because it may be argued that the words are unnecessary and the
condition is sufficiently provided for in clause (3). I submit that the
amendments which stand in my name are merely an application of this method of
draftsmanship to the other sub-clauses. I submit if we have them in the sub-clauses
(b), they should also be in (a), (c), (d), (e), (f) and (g). If we introduce
the words “for any lawful purpose” there, they will be beyond the scope of any
legislature to interfere. But if we are satisfied with clauses (2), (3), (4),
(5) and (6), they can be interfered with by the Legislature. So there is this
difference that with the inclusion of the words in the sub-clauses as I
suggest, they would be part of the Fundamental Right. That is, if any one
speaks, he should do so for a lawful purpose; if he forms associations and
unions, he should do it in a lawful manner, i.e., he should not
join or form into a conspiracy or other forbidden things of the sort. Then if
he wants to move throughout the territory
of India
(Amendments No. 431 and Nos. 433 to 437 were not
moved.)
Mr. VicePresident: No. 438 and first part of 443. Mr. Kamath.
Shri H. V. Kamath : Mr.
Vice-President, I move:
“That after sub-clause
(g) of clause (1) of article 13the following new sub-clause be added:
I move this amendment, as
amended by my own amendment No. 79 in List No. II, which runs thus:
“That for amendment
No. 438 of the List of Amendments, the following be substituted:
“That after sub-clause (g)
of clause (1) of article 13,the following new sub-clause be added:—
(h) to keep and bear
arms;
and the following new
clause be added after clause (6):
(7) Nothing in sub-clause
(h) of the said clause shall affect the operation of any existing law, or
prevent the State from making any law, imposing, in the interests of public
order, peace and tranquility, restrictions on the exercise of the right
conferred by the said sub-clause.’
Sir, I feel a little
pardonable pride in moving this amendment before the House today. Considering
as I do that it puts an end or brings to an end one phase of our ignominious
past, the past of more than a hundred years, and in view of the importance of
this matter involved in the amendment, may I appeal to you, Sir, to give me a
little latitude in the matter of time, because I want to put the case in its
entirety before the House? And may I also make a personal request to Dr.
Ambedkar or whoever it may be that will reply on behalf of the Drafting
Committee, to pay close attention to what is going out in the House? Yesterday
we found at the fag end of the day Dr. Ambedkar—perhaps he was a bit fagged out
and tired—I felt that he had not followed the debate on titles.
Mr. Vice-President: I
will not allow you to make any reference to what happened yesterday.
Shri H. V. Kamath: Before
I come to the amendment itself may I say a word as to an important omission
which has been made before article 13? I find from the Report of the
Fundamental Rights Sub-Committee over which the Honourable Sardar Patel
presided, the rights from 13 up to 18 have been titled or designated as the
Rights of Freedom. This sub-title ‘Rights of Freedom’ has been omitted from the
draft as presented to the Assembly now. In this report which I am reading—Report
of the Committee—First Series from December 1946 to July 1947—the sub-title is ‘Rights
of Freedom’ just before we come to article 13.
Then, Sir, I come to the
amendment itself. It is common knowledge to all of us who have lived and
worked in India during the last thirty years or more that this has been a
universal demand emanating from all sections of the population, firstly as a
protest against the degrading and humiliating Arms Act passed by the British
Government in the last century, and secondly, Sir, as a guarantee of the right
of self-defence. This demand has been embodied in various Congress Resolutions
during the last two decades. The most important Resolution and most historic,
the most momentous was the Resolution on Fundamental Rights passed at Karachi
“This Congress is of
opinion that to enable the masses to appreciate what Swaraj as conceived by the
Congress will mean to them, it is desirable to state the position of the
Congress in a manner easily understood by them. In order to end the
exploitation of the masses, political freedom must include real economic
freedom of the starving millions. The Congress, therefore, declares that any
constitution.
Mark these words — any
constitution.
* * * which may be
agreed to on its behalf, should provide or enable the Swaraj Government to
provide for the following......”
and various fundamental
rights are enumerated, among them being this one—
"Every citizen has
the right to keep and bear arms in accordance with Regulations and reservations
made in that behalf.”
I find, Sir, from this
list of Fundamental Rights, adopted at the Karachi session of the Congress,
almost all of them have been incorporated in this Draft Constitution, except
this one, and this is a very serious omission.
I might also make an
observation about this amendment, that I am in a very good company, because
amendment No. 443 which is similar to my amendment has been tabled by the
General Secretaries of the Congress — Shri Shankar Rao Deo and Acharya Jugal
Kishore.
Mr. Vice-President: Do
you suggest that it is the work of the Congress only? I thought it is the co-operative
work of all the parties.
Shri H. V. Kamath: But,
Sir, all will agree that the dominant party in this House is the Congress
Party, and if this party is not going to stand by its past professions, if it
is going to prove false to its past, and not implement its resolution of the
past, what has that party come to? If the fundamental idea of this resolution
passed at Karachi Nagpur in 1923 or
1924 there was a Satyagraha movement against the Arms Act and this Satyagraha
movement attracted Satyagrahis from all over — India
I can appreciate the force
of the argument that this absolute right should not be conceded today. Perhaps
there is a lurking fear in the minds of those in power that the right may be
abused. For that reason I have given this proviso in conformity with and in
line with the other provisos which have been embodied in this article. I am
personally not very much in favour of these elaborate provisos. Here again, I
would like to draw the attention of the Honourable Dr. Ambedkar to pages 21 and
29 of this Report of the Committees’ First Series. On page 21, we have the
Report of the Fundamental Rights Sub-Committee presided over by the
Honourable Sardar Patel, and later on the same report was
discussed in the Assembly and modifications were made in that, and the
elaborate provisos which appeared in the original report of the Fundamental
Rights Committee do not find a place in the resolution on the report which was
adopted by the Constituent Assembly. This perhaps needs an explanation from Dr.
Ambedkar.
Reverting to the subject
matter of the amendment. I have already said that I do not want to make
this right absolute. That is why I have tabled this proviso, imposing
restrictions in the interests of public order, peace and tranquility. It may be
said that saboteurs and other elements are abroad in the country and these may
abuse this privilege and take advantage of this privilege conferred upon the
ordinary citizen. But may I tell the House that saboteurs and other evil
elements, villains and criminals have managed and will always manage to get
arms, Arms Act or no Arms Act; and it is the law-abiding citizen who has always
suffered in the bargain, and it is he who has to be protected against these
elements. The history of the last twelve months has proved this to us most
unmistakably, that those who suffer in these criminal riots and disturbances
are not the violent elements or the saboteurs, but the law-abiding citizens,
and these have to be protected.
Again, the argument may be
put forward that we should incorporate only such rights about which there is
fear that they might be denied to the citizen. But if we examine this argument
a little closely, and also this article, in the light of this argument, we will
find that rights like free movement throughout India; freedom to reside and
settle in any part of India, and such other rights about which there is no
doubt or fear that they will be denied, have been incorporated in this article.
But this one right, to keep and bear arms has not found a place in this
article. If this very diluted proposal of mine, if even this very abridged
freedom to bear arms is not acceptable to the House, I am afraid it will create
a most unfortunate impression on our countrymen that the Government does not
trust the people, that the Government has no faith in the people, that the
Government is afraid of the people. It is all right. Sir, for Ministers of
Government to say, “We are here to protect you”. But, with security guards
outside their bungalows, it is very well for them to put forward this plea. But
the ordinary citizen has no armed guard about him, no guards standing outside
his house. If the Government wishes to convey the impression to the people that
the Government has no faith in them, that it is afraid of them, if that is the
attitude of the Government, then it is welcome to say so. It will prove to the
people that you are not a popular government, that you are a government which
has no faith in the people. If you are a popular government, this is the least
that you can do today to put an end to this ignominy of the past one hundred
years.
It may be argued also that
the Congress and Mahatma Gandhi and our leaders have taught us to defend
ourselves by Ahimsa, and not by Himsa, by non-violence and not by violence.
But, Sir, may I, in all humility remind the House that Mahatma Gandhi used to
say, “Resist, defend, non-violently, if possible, but violently, if necessary.
What I hate is cowardice.” And this doctrine, Sir, has been propagated recently
by the Honourable Sardar Patel himself who has been going
about the country asking the people never to run away, never to be cowards, but
to resist violently if necessary, not to run away from the assassin, from the
hooligan, from the criminal. Defend yourself by all means and at all costs. I
find my honourable Friend Mr. Shankar Rao Deo laughing in his seat. He is
welcome to smile or laugh but I may tell him that he laughs best who laughs
last. He has tabled an amendment here. I do not know whether he is serious
about it. In the end I will only say that if we of the Congress party who are
in a majority desire to prove true to our past, if we have the desire in us to
implement all the resolutions that we have adopted in the past, if we do not
want to live with the lie in our soul, I appeal to the House to accept this
amendment and put an end to one of the most disgraceful phases of our
ignominious past of over a hundred years.
Mr. Vice-President: May
I ask whether the first part of amendment No. 443 is going to be pressed?
Shri Shankarrao Deo (Bombay
Maulana Hasrat
Mohani (United Provinces: Muslim): Sir, I want to give my wholehearted
support to the motion of my honourable Friend who has just moved his amendment........
Mr. Vice-President: May
I suggest that instead of starting the general discussion we postpone it till
all the amendments have been moved. We shall try our best to give the Maulana
Sahib an opportunity to speak. Will he kindly resume his seat? (Laughter)
Order, order. The Maulana
Sahib is perfectly within his rights if he wants to speak. I am sorry, Maulana
Sahib, to ask you to go back to your seat. It is regrettable to greet an old
Member of this House in this fashion.
"That after sub*clause
(g) of clause (1) of article 13, the following new sub-clause be added:—
(h) to follow the personal
law of the group or community to which he belongs or professes to belong.
(i) to personal liberty
and to be tried by a competent court of law in case such liberty is curtailed’.”
Shri C.
Subramaniam (Madras
As regards the other part
of the amendment, it should be discussed when we take up article 15.
Mr. Vice-President: It
is no point of order. Mr. Mohammed Ismail Sahib may continue his speech.
Mr. Mohammed
Ismail Sahib : It
is really true that I made a similar proposal when the directive principles were
under discussion. I made it clear that this question of personal law ought
really to come under the chapter Fundamental Rights and I also said that I
shall, when the opportunity came, move this amendment at the proper
time.
Person law is part of
the religion of a community or section of people which professes this law.
Anything which interferes with personal law will be taken by that community and
also by the general public, who will judge this question with some commonsense,
as a matter of interference with religion. Mr. Munshi while speaking on the
subject previously said that this had nothing to do with religion and he asked
what this had to do with religion. He as an illustrious and eminent lawyer
ought to know that this question of personal law is entirely based upon
religion. It is nothing if it is not religious. But if he says that a religion
should not deal with such things, then that is another matter. It is a question
of difference of opinion as to what a religion should do or should not. People
differ and people holding different views on this matter must tolerate the
other view. There are religions which omit altogether to deal with the question
of personal law and there are other religions like Hinduism and Islam which
deal with personal law. Therefore I say that people ought to be given liberty
of following their personal law.
It was also stated by Dr.
Ambedkar on the floor of this House that the question of following personal law
was not immutable. There were, as a matter of fact, sections of Muslims who do
not follow the personal law prescribed by Islam, but that is a different
matter. It is not reasonable to say that simply because a section of people do
not want to follow a certain law of a certain religion or a certain part of that
religion that other people also should not follow the law and that sections of
people should be compelled not to follow that part of the religion which
certain other sections of the same community are not following.
That is not really
reasonable, Sir, and it is really immutable to the people who follow this law
and this religion, because people, as they understand it, have not got the
right to change their religion as they please. There may be people who
contravene their own religion, but that is a different matter and we cannot
compel others also to contravene their religion. Here the question of personal
law affects only the people who follow this law. There is no compulsion
exercised thereby on the general community or the general public. This House
will remember that on another question, which is really a religious question — I
mean the question of cow-slaughter — an obligation has been placed upon other
communities than the one which considers the prohibition of cow-slaughter as a
religious matter. But then, Sir, respecting the views and feelings of our
friends, the minority communities who have got the right and privilege of
slaughtering and eating the flesh of cows have agreed to the proposal put
before the House, though that is going beyond affecting one particular
community alone. Here, Sir, observance of personal law is confined only to the
particular communities which are following these personal laws. There is no
question of compelling any other community at all.
Pandit Thakur Dass
Bhargava (East Punjab: General): Is the honourable Member aware of the
restrictions of cow slaughter in Pakistan
Mr. Vice-President: Will
the honourable Member kindly address the Chair.?
Mr. Mohammed Ismail
Sahib: I cannot hear him properly. I do not know what my friend is
trying to say.
Mr. Vice-President: Do
not pay any attention to that. Will the Honourable Member continue?
Pandit Thakur Dass
Bhargava: I was enquiring of the honourable Gentleman if he knows that
there is a restriction on cow slaughter in Pakistan ,
in Afghanistan India
Mr. Mohammed
Ismail Sahib: They might have or not have made a provision of that
sort. My point is that this is a question which affects a particular community,
but because that community wanted to prevent that slaughter the other
community, which need not prohibit that slaughter has agreed to that proposal.
But with regard to personal law, it concerns a particular community which is
following a particular set of personal laws and there is no question of
compelling other people to follow that law and it is the question of the
freedom of the minority or the majority people to follow their own personal
law. As a matter of fact, I know there are an innumerable number of Hindus who
think that interference with the personal law is interference with their
religion. I know, Sir, that they have submitted a monster petition to the
authorities or to the people who can have any say in the matter. Therefore it
is not only Muslims but also Hindus who think that this is a religious question
and that it should not be interfered with. The personal law of one community
does not affect the other communities. Therefore, Sir, what I urge is that the
freedom of following the personal law ought to be given to each community and
it will not interfere with the rights of any other community.
Again, Mr. Munshi stated
that Muslim countries like Egypt
or Turkey Turkey Turkey has been placed and that is obtaining in Turkey
Then again with regard to Egypt
Then there are other
countries. Yugoslavia
Therefore, what I am
asking for is not a matter which is peculiar to myself or to the minority
community in this country. It is a thing, Sir, well understood in other parts
of the world also.
Sir, I also move:
”That after clause
(6) of article 13, the following new clauses be added:
‘(7) Nothing in the
clauses (2) to (6) of this article shall affect the right guaranteed under sub-clause
(h) of clause (1) of this article’.”
This is consequential. The
personal law is presumed to be guaranteed by the previous amendment, that is
the new sub-clause (h) to clause (1) of article 13, and this clause(7) seeks to
preclude any interference with the question of personal law as a result of
clauses (2) to (6).
Then coming to the new
clause (i), it reads thus:
“to personal liberty and
to be tried by a competent court of law in case such liberty is curtailed.”
This has nothing to do
with the minority or the majority. It concerns itself with the right of every
citizen. Personal liberty is the core of the whole freedom. It is the basis
upon which the freedom of the land must be built. But here, Sir, in this bulky
Constitution this question of personal liberty is left almost as an orphan.
Only one mention is made of personal liberty, i.e., in article 15
and it is left there, it is left to be taken care of by ‘procedure established
by law’. I do not here enter into the controversy whether it should be “by due
process of law’, or “by procedure established by law”. But what I want to say
is that only a mention has been made in the Constitution with regard to
personal liberty. But personal liberty is the most fundamental of the
fundamental rights and it ought not to be dealt with in such a cursory manner,
as it has been done in the Constitution.
I request your permission
to read a quotation to illustrate how the Constitutions of other countries have
dealt with this all-important question of personal liberty.
Much smaller countries
than India
‘The laws prescribe the
means of compulsion which maybe employed by the administrative authority to
secure the carrying out of their order.’
Then again, the same
Constitution says; “No law may deprive a citizen, who is the victim of
injustice or wrong, of judicial means of redress.”
Sir, another State, viz.,
Yugoslavia
“A man after he is
informed of the reasons for the arrest or detention has got the right.........”
Shri C. Subramaniam: Questions
of personal liberty come only under article 15. They are irrelevant under this
article. It is article 15 that deals with personal liberty thus: “No person
shall be deprived of his life or personal liberty except according to procedure
established by law, nor shall any person be denied equality before the law or
the equal protection of the laws within the territory of India
Mr. Mohammed Ismail
Sahib: I have already referred to this point. Of course it is
mentioned there. But to say that because it is mentioned there it is necessary
that the matter should be discussed only there is not correct. I am of the view
that this subject is more appropriately brought under article 13 which speaks
of the various freedoms of the citizen. Of these freedoms, this is the most
important. Therefore there is nothing wrong in my saying that this all-important
question must be brought under article 13. With that view I have tabled this
amendment and I am speaking on this amendment.
Sir, my amendment, which I
have moved with your permission, says that the citizen shall be guaranteed his
personal liberty. As I was saying, the Constitution of Yugoslavia has provided:
“No person may be placed under arrest for any crime or offence whatever save by
order of a competent authority given in writing stating the charge. This
order must be communicated to the person arrested at the time of arrest or
within 24 hours of the arrest. An appeal against the order for arrest may be
lodged in the Competent Court
Sir, ours is a bulky
Constitution. Our friends congratulated themselves in having produced the
bulkiest Constitution in the world. And this Constitution from which I read out
an extract just now contains only 12 articles. It is a much smaller
Constitution than ours and yet in the matter of personal liberty it has made
such an elaborate provision as that I mentioned. This bulky Constitution of
ours does not find more than a few words where this all important question of
personal liberty is concerned.
Now, Sir, there are
various Public Safety Acts enacted and enforced in the various provinces of the
country. Here, personal liberty as it stands is almost a mockery of personal
liberty. A man is being arrested at the will and pleasure of the executive. He
is put in prison and he does not even know for what he has been imprisoned or
for what charge he has been detained. Even where the law puts the obligation on
the Government to reveal to him the reasons for which he has been detained, the
executive takes its own time to do so. There are cases in which the persons
concerned were not informed of the charge for weeks and months and when the
charges were communicated, many of them were found to be of such a nature that
they could not stand before a court of law for a minute. No right has been
given to a detenu or a person arrested or detained to test the validity of the
order before a court of law. This kind of administration of law was not known
even under foreign rule, that is, under British rule.
Now, Sir, another
contention is being indulged in, and that is that it was different when the
Britisher, the foreigner was in the country and that now its is our own rule.
True, but that does not mean that we can deal with liberty of the citizens as
we please. Bureaucracy is bureaucracy, whether it is under foreign rule or self-rule.
Power corrupts people not only under foreign rule, but also under self-government.
Therefore, Sir, the citizen must be protected against the vagaries of the
executive in a very careful manner as other self-governing countries have done.
In almost every country in the world, they have made elaborate provision for
protecting the personal liberty of the citizen. Why should India
Sir, in this amendment of
mine I have not gone elaborately into the question of personal liberty. I only
want the citizen concerned to be given the right of going to, and being tried
by, a court of law, if his personal liberty is curtailed. That one precious
right I want to be given to every citizen of India
May I also, Sir, move the
other consequential amendments included in amendment No 502. I have moved only
the one on page 53 of the List of Amendments, namely new sub-clause (7). That
relates to personal law. May I move now the other portion of the amendment
relating to new clauses(8) and (9) on page 54 of the List?
Mr. Vice-President: The
Honourable Member may do so, but without making a speech.
Mr. Mohammed Ismail
Sahib: Sir, I move that the following new clauses be added:
“(8) Nothing in clauses
(2) to (6) shall affect the right guaranteed under sub-clause (i) of
clause (1) of this article.
(9) No existing law shall
operate after the commencement of this Constitution so far as the same affects
adversely the right guaranteed under sub-clause (i) of clause (1) of this
article and no law shall be passed by the Parliament or any State which may
adversely affect the right guaranteed under sub-clause (i) of clause (1) of
this article.”
These are only
consequential amendments.
Mr. Vice-President: We
shall now go on to amendments Nos. 442, 499, the second part of 443, 468 and
501. These are all of similar import. I hold that the only two amendments which
can be moved under the new regulations are amendments Nos. 442 and 499. The
others will be voted on.
Shri M. Ananthasayanam
Ayyangar (Madras
Mr. Vice-President: What
about 499?
Pandit Thakur Dass
Bhargava: That also relates to the same subject.
Mr. Vice-President: The
whole group will be held over for consideration.
(Amendment
No. 444 was not moved.)
Mr. Vice-President: Amendment
No. 445.
"That the following
new clause be added after clause(1) of article 13:
‘Liberty territory of India
Sir, this again is of the
same species of amendments which I am trying my best to place before the House,
that is to say, the enunciation and incorporation of those elementary
principles of modern liberal constitutions in which it is a pity our
Constitution seems deliberately to be lacking. The liberty of the person, ever
since the consciousness of civil liberties, has come upon the people, has been
the main battleground of the autocrats and those fighting against them. In no
single instance other than this has the power of autocracy wanted to assert
itself against the just claims of the individual to be respected in regard to
his personal freedom. The liberty of the person to fight against any arbitrary
arrest or detention, without due process of law, has been the basis of English
constitutional growth, and also of the French Constitution that was born after
the Revolution. The autocrat, the despot, has always wished, whenever he was
bankrupt of any other argument, just to shut up those who did not agree with
him. It was, therefore, that any time the slightest difference of opinion was
expressed, the slightest inconvenience or embarrassment was likely to be caused
by any individual, the only course open to those who wanted to exercise autocratic
power was to imprison or arrest or detain such a person without charge or
trial. It has been in fact in many modern constitutions among the most cardinal
articles that the liberty of the person shall be sacred, shall be guaranteed by
the Constitution. We are covering new ground and should not omit to incorporate
in our Constitution those items which in my opinion ought to be sacrosanct,
which would never lose anything by repetition, and which would also add to our
moral stature.
This Constitution, Sir,
was drafted at a time when people were going through extraordinary stress and
strain. The tragic happenings of some twelve or fourteen months ago were no
doubt responsible for influencing those who drafted this Constitution to feel
that in the then prevailing goods it was necessary to restrict somehow the
freedom of the individual. Therefore it is that the freedom of the individual,
the sacredness and sanctity of personal liberty has been soft-pedalled in this
Constitution. But now after an interval of fourteen months. I would suggest to
this House that these sad memories should be left to the limbo where they
deserve to remain. We have had no doubt the unfortunate experiences in which
individuals moved by whatever sentiments had tried to exert violence and do
injury to their fellows which no civilised State can put up with. It was
therefore at the time necessary that such individuals should be apprehended
immediately. In emergencies like this, in cases like this, if you wait for
performing the due processes of law, if you wait for reference to a magistrate
for the issue of a proper warrant, or compliance with all the other formalities
of legal procedure to be fulfilled, it is possible that the ends of justice may
not be served, it is possible that the maintenance of law and justice may be
endangered. But, Sir, I venture to submit to this House that was an
extraordinarily abnormal situation which we hope will not recur. Constitution
should be framed, not for these abnormal situations, but normal situations and
for reasonable people who it must be presumed will be normally law-abiding and
not throw themselves entirely to the mercy of these goondas. We are making a
constitution, Sir, for such types of people and not for those exceptions, the
few who might have temporarily lost the possession of their senses, and who
therefore maybe dealt with by extraordinary procedure.
We have in this
Constitution as we have in many other Constitutions provisions relating to a
state of emergency where the normal Constitution is suspended. I am not at all
enamoured of these extraordinary exceptions to the working of constitutions;
but even I might conceive that in moments of emergency it may be necessary,
however regrettable it maybe, to suspend constitutional liberties for the time
being. But we must not, when framing a constitution, always assume that this is
a state of emergency, and therefore omit to mention such fundamental things as
civil liberties.
I, therefore, want to
mention categorically in this Constitution that the liberty of the person shall
be respected, shall be guaranteed by law, and that no person shall be arrested,
detained or imprisoned without due process of law. That process it is for you
to provide. That process it is for laws made under this Constitution to lay
down. And if and in so far as that process is fulfilled, there is no reason to
fear that any abuse of such individual liberty will take place. Why then deny
it, why then omit the mention of personal liberty that has all along been the mark
of civilised democratic constitutions against the autocratic might of
unreasoning despots? I am afraid, looking at the fate of most of my amendments,
that I may perhaps be hurling myself against a blank wall. But I will not
prejudice my hearers and certainly not the draftsmen by assuming that they are
unreasoning until they prove that they are guilty of utterly unreasoning
opposition.
Mr. Vice-President: Amendments
Nos. 446, 447 and 448.These are all of similar import. Amendment No. 448 may be
moved. It stands in the joint names of Shrimati Renuka Ray, Dr. Keskar, Shri
Satish Chandra and Shri Mohanlal Gautam.
(Amendments
Nos. 448 and 446 were not moved.)
Mahboob Ali Baig Sahib
Bahadur: (Madras
Mr. Vice-President: That
comes under another group which will be dealt with hereafter.
"That clauses (2) to
(6) of article 13 be deleted and the following proviso be added to clause (1):
‘Provided, however that no
citizen in the exercise of the said right, shall endanger the security of the
State, promote ill-will between the communities or do anything to disturb peace
and tranquility in the country’.”
Mr. Vice-President, Sir,
to me it looks as if the fundamental rights are listed in clause (1) only to be
deprived of under clauses (2) to (6), for in the first place, these fundamental
rights are subject to the existing laws. If in the past the laws in force, the
law-less laws as I would call them, the repressive laws, laws which were
enacted for depriving the citizens of their human rights, if they have deprived
the citizens of these rights under the provisions under clauses (2) to (6),
they will continue to do so. The laws that I might refer to as such are the
Criminal Law Amendment Acts, the Press Acts and the several Security Acts
that have been enacted in the Provinces. And these clauses (2) to (6) further
say that if the existing laws are not rigorous, repressive and wide enough to
annihilate these rights, the States as defined in article 7 which covers not
only legislatures, executive Governments and also the local bodies, nay, even
the local authorities can complete the havoc. I am not indulging in hyperbole
or exaggeration. I shall presently show that there is not aniota of sentiment
or exaggeration in making this criticism. Fundamental rights are fundamental,
permanent, sacred and ought to be guaranteed against coercive powers of a State
by excluding the jurisdiction of the executive and the legislature. If the
jurisdiction of the executive and the legislature is not excluded, these
fundamental rights will be reduced to ordinary rights and cease to be
fundamental. That is the import, the significance of fundamental rights.
Then, Sir, it is said by
Dr. Ambedkar in his introductory speech that fundamental rights are not
absolute. Of course, they are not; they are always subject to the interests of
the general public and the safety of the State, but the question is when a
certain citizen oversteps the limits so as to endanger the safety of the State,
who is to judge? According to me, Sir, and according to well recognised canons,
it is not the executive or the legislature, but it is the independent judiciary
of the State that has to judge whether a certain citizen has overstepped the
limits so as to endanger the safety of the State. This distinction was
recognised by the framers of the American Constitution in that famous
Fourteenth Amendment which clearly laid down that no Congress can make any law
to prejudice the freedom of speech, the freedom of association and the freedom
of the press. This was in 1791, and if the American citizen transgressed the
limits and endangered the State, the judiciary would judge him and not the
legislature or the executive.
Even in the case of Britain Germany
(Mr. Vice-President
rang the time bell.)
I would request you to
give me some time more. I am just developing the point.
Mr. Vice-President: Sorry,
you cannot have time without my permission. At the proper time, I would request
you to finish and take your seat. I hope you will respect my wishes.
Mahboob Ali Baig
Sahib Bahadur: Sir, it is these wide considerations that were responsible
for the deletion of such clauses by this august Assembly on the 30th
April,1947, when Sardar Patel who was the Chairman of the
Committee to report on Fundamental Rights, presented these Fundamental Rights.
He moved for the deletion of all these provisos and in the discussion on the
30th of April 1947, many prominent men including Pandit Jawaharlal Nehru took
part, and all these provisos were deleted. The proceedings can be found on
pages 445 to 447. Here, the Prime Minister of India says:
“A fundamental right
should be looked upon, not from the point of view of any particular difficulty
of the moment, but as something that you want to make permanent in the
Constitution.”
Therefore, Sir, in this
august Assembly on the 30th of April 1947, after discussion in which prominent
men including Mr. Munshi took part, these provisos were deleted. This departure
now to re-introduce these provisions, I submit, with great respect, is a
departure which is retrograde and I submit, Sir, that we ought not to allow it.
My submission is that the existence of these three provisos is the very
negation of the Fundamental Rights. I would request you to consider this
question from three or four points of view.
(Mr. Vice-President
again rang the time bell.)
With your permission,
Sir,...........
Mr. Vice-President: No;
there are many more speakers. I must now insist upon your obeying my orders.
Mahboob Ali Baig Sahib
Bahadur: A few more minutes, Sir.
Mr. Vice-President: I
have given you enough time. There are other speakers. I have an obligation
towards them also.
Now, we shall go to the
next two amendments. One is amendment No. 449 and the other is amendment No.
453. Of these two, I think amendment No. 453 is more comprehensive and may be
moved. It stands in the joint names of Dr. Pattabhi Sitaramayya and others.
There is also an amendment to that amendment.
Shri M. Ananthasayanam
Ayyangar: Sir, I submit that this amendment No. 453** which
stands in our joint names maybe taken as formally moved. I find in the order
sheet, in list No. IV a further amendment to this amendment. I accept that
amendment, Sir. If you kindly give permission to move that amendment, I shall
accept it and it is not necessary to move this amendment.
Mr. Vice-President: Mr.
Munshi.
Shri H. V. Kamath: On
a point of order, Sir, unless this amendment is moved, no amendment can be
moved to this. This cannot be taken as moved.
Mr. Vice-President: Do
you want that he should read over the amendment? I overlooked it. Mr. Munshi.
** That for
clause (2) of article 13, the following be substituted:—
“Nothing in sub-clause (a)
of clause (1) of this article shall affect the operation of any existing law,
or prevent the State from making any law relating to libel, slander,
defamation, offences against decency or morality or sedition or other matters
which undermine the security of the State.”
Shri K. M.
Munshi : (Bombay
"That for clause (2)
of article 13, the following be substituted:-
‘(2) Nothing in sub-clause
(a) of clause (1) of this article shall affect the operation of any existing
law, or prevent the State from making any law relating to libel, slander,
defamation, or any matter which offends against decency or morality or which
undermines the security of, or tends to overthrow, the State.’ “
Sir, before I go to the
merits of the amendment, I should like to point out a verbal error which I am
sure my honourable Friend Dr. Ambedkar will permit me to correct. After the
words, “shall affect the operation of any existing law”, I propose that the
words “in so far as it relates to” should be added; because, that connects this
clause with “to libel, etc.” This would make the meaning clear and I am sure my
Honourable Friend will accept it.
As regards the
merits, the changes sought to be made are two. In the original clause, the word
‘sedition’ occurs. The original clause reads as follows: “relating to libel,
slander, defamation, sedition or any other matter”. The amendment seeks to omit
the word ‘sedition’. Further the amendment seeks to substitute the words “undermines
the authority or foundation of the State” by the words…..
Mr. Naziruddin Ahmad: On
appoint of order, Sir, we have not got this amendment at all. In list IV the
number does not tally at all. I believe, Sir, it was circulated today and it
can not be taken up. We should be given some breathing time in order to
understand what is going on.
Mr. Vice-President: I think
amendments to amendments can be permitted up to the time when the amendment is
moved. I understand that this was placed on the table before each member.
Shri K. M.
Munshi: Really speaking, the original amendments numbers 458 and 461
have been brought under a single amendment. There is nothing new in this
amendment, Sir.
Mr. Vice-President: Go
on, Mr. Munshi.
Pandit
Hirday Nath Kunzru: (United Provinces: General): Sir, may I request
Mr. Munshi to read out his amendment, once again? What is it an amendment to?
Shri K. M. Munshi: This is
amendment to amendment No. 453, on page 29. In effect, it combines two
amendments which are already on the list. This is how it reads:
"That for clause (2)
of article 13, the following be substituted:-
‘(2) Nothing in
sub-clause (a) of clause (1) of this article shall affect the operation of any
existing law, or prevent the State from making any law relating to libel,
slander, defamation’.”
Then
comes another change.
or any matter which offends
against decency or morality.”
Then comes
another change.
“of which
undermines the security of, or tends to overthrow the State.”
That is exactly
the wording of amendment No. 461.
The object of…
Shri Mahavir
Tyagi (United Provinces: General): May I take it that the word ‘morality’
has been taken out?
Shri K. M.
Munshi: I read the word ‘morality’.
Mr. Vice-President:
You need be under no sort of apprehension so far as that is concerned.
Shri K. M.
Munshi: The House will not permit me to do anything of the sort. Sir,
the importance of this amendment is that it seeks to delete the word ‘sedition’
and uses a much better phraseology, viz. “which undermines the
security of, or tends to overthrow, the State.” The object is to remove the
word ‘sedition’ which is of doubtful and varying import and to introduce words
which are now considered to be the gist of an offence against the State.
Shri Amiyo
Kumar Ghosh (Bihar : General): On a
point of information, I want to know whether without moving the original
amendment, as amendment, to it can be moved?
Mr. Vice-President:
The amendment was moved formally.
Shri K. M.
Munshi: I was pointing out that the word ‘sedition’ has been a word of
varying import and has created considerable doubt in the minds of not only the
members of this House but of Courts of Law all over the world. Its definition
has been very simple and given so far back in 1868. It says “sedition embraces
all those practices whether by word or deed or writing which are calculated to
disturb the tranquility of the State and lead ignorant persons to subvert the
Government”. But in practice it has had a curious fortune. A hundred and fifty
years ago in England
“This
(sedition) is not made an offence in order to minister to the wounded vanity of
Governments but because where Government and the law ceases to be obeyed
because no respect is felt any longer for them, only anarchy can follow. Public
disorder, or the reasonable anticipation or likelihood of public disorder is
thus the gist of the offence. The acts or words complained of must either
incite to disorder or must be such as to satisfy reasonable men that that is
their intention or tendency.”
This amendment
therefore seeks to use words which properly answer to the implication of the
word ‘Sedition’ as understood by the present generation in a democracy and
therefore there is no substantial change; the equivocal word ‘sedition’ only is
sought to be deleted from the article. Otherwise an erroneous impression would
be created that we want to perpetuate 124-A of the I. P.C. or its meaning which
was considered good law in earlier days. Sir, with these words, I move this
amendment.
Shri H. V.
Kamath: On a point of clarification, may I ask my learned friend Mr.
Munshi to examine whether the deletion of the word ‘other’ from the phrase ‘any
other matter’ will not create some doubt or difficulty about the meaning of
this amendment? Because if he will look up article 13 in the Draft
Constitution, he will find that the phrase used is “any other matter”. Here the
word ‘other’ is deleted which will mean that so far as slander, defamation and
libel are concerned, they can not offend against decency or morality, but only
some other matter can. Is it the contention of Mr. Munshi that neither
defamation, slander nor libel offends against decency and morality?
Shri K. M.
Munshi: In the original clause of this article as drafted the words
were — “libel, slander, defamation, sedition or any other matter which offends
against decency or morality or undermines the authority or foundations of the
State.” Here we have omitted the word ‘sedition’. Slander and defamation need
not be necessarily connected with a violation of decency or morality nor do
they undermine the authority of the State: the words “any matter” indicate as
independent category. One category is libel, slander and defamation. The other
category is any matter which offends against the State. The word ‘other’
therefore would be in appropriate.
Shri H. V. Kamath: In the draft article the antecedents of the
words ‘other’ matter were libel, slander, defamation and sedition, all of them.
Shri K. M. Munshi: I
cannot agree with my honourable friend.
Mr. Vice-President: Do
you press amendment 449?
Mr. Naziruddin
Ahmad: Yes.
Mr. Vice-President: It
will be put to vote. We next come to 450, 451, 452, 453, 465 and 478—all are of
similar import and should be considered together. Amendment 450 is allowed.
“That clause (2),
(3), (4), (5) and (6) of article 13 be deleted.”
Sir, in article 13 (1), sub-clauses
(a), (b) and (c), they give constitutional protection to the individual against
the coercive power of the State, if they stood by themselves. But sub-clause (2)
to (6) of article 13 would appear to take away the very soul out of these
protective clauses. These lay down that nothing in sub-clauses (a), (b), (c) of
article 13 shall effect the operation of any of the existing laws, that is, the
various laws that abrogate the rights envisaged in sub-clause (1) which were
enacted for the suppression of human liberties, for instance, the Criminal Law
Amendment Act, the Press Act, and other various security Acts. If they are to
continue in the same way as before, then where is the change ushered in and so
loudly talked of? The main purpose of declaring the rights as fundamental is to
safeguard the freedom of the citizen against any interference by the ordinary
legislature and the executive of the day. The rights detailed in article 13(1)
are such that they cannot be alienated by any individual, even voluntarily. The
Government of the day is particularly precluded from infringing them, except
under very special circumstances. But here the freedom of assembling, freedom
of the press and other freedoms have been made so precarious and entirely left
at the mercy of the legislature that the whole beauty and the charm has been
taken away. It is not only the existing laws that have been subjected to this
clause, but the State has been further armed with extraordinary powers to make
any law relating to libel, slander etc. It may be said that every State should
have the power and jurisdiction to make laws with regard to such matters as
sedition, slander and libel. But in other countries like America
For further illustration
we may take the law of sedition enacted under 13(2). All that the Supreme Court
shall have to adjudicate upon would be whether the law enacted relates to “sedition”
and if it does, the judiciary would be bound to come to a finding that it is
valid. It would not be for the Judge to probe into the matter whether the
actual provisions are oppressive and unjust. If the restriction is allowed to
remain as it is contemplated in 13(2), then the citizens will have no chance of
getting any law relating to sedition declared invalid, howsoever oppressive it
might be in restricting and negativing the freedom promised in 13(1)(a). The “court”
would be bound to limit its enquiry within this field that the Parliament is
permitted under the Constitution to make any laws pertaining to sedition and so
it has done that. The constitution is not infringed anywhere, and rather, the
draft is declaring valid in advance any law that might be enacted by the
Parliament—only if it related to sedition. Similar is the case of other freedom
posed in article 13(1) but eclipsed and negatived in clauses (2) to (6).
It may be argued that
under a national government, the legislature, representative of the people and
elected on adult franchise, can and should be trusted for the safe custody of
citizens’ rights. But as has been aptly remarked, “If the danger of executive
aggression has disappeared, that from legislative interference has greatly
increased, and it is largely against this danger that the modern declarations
of fundamental rights are directed, as formerly they were directed against the
tyranny of autocratic kings.”
The very object of a Bill
of Rights is to place these rights out of the influence of the ordinary
legislature, and if, as under clauses (2) to (6) of article 13, we leave it to
this very body, which in a democracy, is nothing beyond one political party, to
finally judge when these rights, so sacred on paper and glorified as
Fundamentals, are to be extinguished, we are certainly making these freedoms
illusory.
If the other countries
like the U.S.A.
Sir, I commend this
amendment to the House.
Mr. Vice-President: The
next amendment on the list is the alternative amendment No. 451, in the same of
Mr. Mahboob Ali Baig.
“That the following words
be inserted at the beginning of clauses (2), (3), (4), (5) and (6) of article
13:-
‘Without prejudice
and subject to the provisions of article 8.”
My purpose in moving this
amendment is two old. Firstly, I want to know the mind of Dr. Ambedkar and the
Drafting Committee how article 8 stands in relation to these provisos. It may
be asked whether these clauses (2) to (6)are governed by article 8 or not. If
these clauses are governed by article 8, may I refer to article 8 itself. It
says:
"All laws in force
immediately before the commencement of this Constitution in the territory of India
The words “inconsistent
with the provisions of this part” do not affect the existing laws relating to
libel, the existing laws relating to restrictions on the exercise of the rights
with regard to association or assembly. That means that the existing laws
mentioned in clauses (2) to (6) are not all rendered void under Article 8. The
intention is clear from the footnote that is appended to article 15, where the
reason for the inclusion of the word “personal” is given There it is said:
“The Committee is of
opinion that the word ‘liberty’ should be qualified by the insertion of the
word ‘personal’ before it, for otherwise it might be construed very widely so
as to include even the freedom already dealt with in article 13.”
Thus it is very clear that
if the existing law relates to libel, if it relates to meetings or
associations, or freedom of speech or expression, then that existing law stands
in spite of the fact that article 8 says that any law in force which is
inconsistent with the fundamental rights is void. So we come to this position.
In the past the existing laws, for instance, the Criminal Law Amendment Acts,
the Press Acts or the Security Acts laid down restrictions which are
inconsistent with the liberties mentioned in clause (1).They shall be in
operation and they are not rendered void. That seems to be the meaning that can
naturally be attached to this.
The second point which I
wish to submit is this. By the Constitution certain powers are given to the
legislature or the executive. Whether a court can question the validity or
otherwise of such action, order or law is another question. My opinion is that
where there is a provision in the Constitution itself giving power to the
legislature or in this case the State covering the legislature, executive,
local bodies and such other institutions, the jurisdiction of the court is
ousted, for the court would say that in the constitution itself power is
granted to the legislature to deprive, restrict or limit the rights of the citizen
and so they cannot go into the validity or otherwise of the law or order,
unless as it is said there is mala fides. It is for the authorities
to judge whether certain circumstances have arisen for which an order or law
can be passed. Anyhow I pose this question to the Chairman of the Drafting
Committee whether in these circumstances, viz., where there is in
existence a provision in the constitution itself empowering the legislature or
the executive to pass an order or law abridging the rights mentioned in clause
(1), the court can go into the merits or demerits of the order or law and
declare a certain law invalid or a certain Act as not justified. In my view the
court’s jurisdiction is ousted by clearly mentioning in the constitution itself
that the State shall have the power to make laws relating to libel, association
or assembly in the interest of public order, restrictions on the exercise
of....
The Honourable Dr.
B. R. Ambedkar (Bombay
Mahboob Ali Baig Sahib
Bahadur: The third point which I would submit is this. The new set up
would be what is called parliamentary democracy or rule by a certain political
party, by the party executive or party government and we can well imagine what
would be the measure of fundamental rights that the people would enjoy under
parliamentary democracy or rule by a party. In these circumstances is it not
wise or necessary in the interest of the general public that the future
legislatures ruled by a party or the executive ruled by a party are not given
powers by this very constitution itself? For as has been said ‘power corrupteth’
and if absolute power is placed in the hands of party government by virtue of
the terms of this constitution itself, such legislature or executive will
become absolutely corrupt. Therefore, I move that if at all these
provisos are necessary, they must be subject to the provision that no law
can be passed, no law would be applicable which is inconsistent with the
freedoms mentioned in sub-clause (1). Sir, I move.
Mr. Vice-President: The
next group consists of amendments Nos. 454, 455, 469, 475, 481, and the first
part of 485. They are of similar import and I allow amendment No.454 to be
moved. There are certain amendments to the amendment also.
"That in clauses (2),
(3), (4), (5) and (6) of article 13 the words “affect the operation of any
existing law, or” be deleted.”
To this clause an
amendment has been given by the Honourable Dr. Ambedkar.
Mr. Vice-President: May
I suggest that when you move amendment No. 454 you move it along with your new
amendment?
Pandit Thakur Dass
Bhargava: I have moved No. 454, to which an amendment, stands in the
name of the Honourable Dr. Ambedkar. To this latter I have given an amendment
which is No. 3 in today’s list. I have also given two other amendments to
amendment No. 454. So I shall, with your permission, move them in one bloc.
Sir, I move:
"That with reference
to amendment No. 49 of list 1 of the Amendment to Amendments—
(i) in clause (2) of article 13 for the word ‘any’
where it occurs for the second time the word ‘reasonable’ be substituted and
the word ‘sedition’ in the said clause be omitted.
(ii) that in clauses (3), (4), (5) and (6) of
article 13 before the word ‘restrictions’ the word ‘reasonable’ be inserted.”
The net result of these
amendments is the following: I want that the words ‘affect the operation of any
existing law or” be deleted and also that before the word “restrictions” in
clauses (3), (4), (5) and (6) the word “reasonable” be placed. I also want that
in clause (2) for the word ‘any’ where it occurs for the second time, the word ‘reasonable’
be substituted.
If my suggestion is
accepted by the House then clause (3) would read:
"Nothing in sub-clause
(b) of the said clause shall prevent the State from making anything, imposing
in the interests of public order reasonable restrictions on the exercise of the
right conferred by the said sub-clause.”
As regards the effect of
amendment No. 454, if the following words are taken away—
“Affect the operation of
any existing law, or”
the result will be that, not that all the present
laws which are in force today will be taken away, but only such laws or
portions of such laws as are inconsistent with the fundamental rights according
to article 13, will be taken away, and article 8 will be in force.
Now I will deal with these
amendments separately. I want to deal with 454 first.
You will be pleased to
observe that so far as article 8 is concerned, it really keeps alive all the
laws which are in force today, except such portions of them as are inconsistent
with the fundamental rights conferred by Part III. These words—”affect the
operation of any existing law, or”......
Mr. Vice-President: How
can you deal with a thing unless it is moved by Dr. Ambedkar?
Pandit Thakur Dass
Bhargava: In the first instance, a resolution has been passed by this
House that all amendments shall be taken as moved without being formally moved.
Secondly, if you allow me another chance to speak on the amendment when moved
by Dr. Ambedkar, I will be content to move my amendment then. Only with a view
to save time, I have taken this course and, I had asked for your permission,
though it was unnecessary to do so.
Mr. Vice-President: All
right.
Pandit Thakur Dass
Bhargava: Thank you. I was speaking of the effect of the words—”affect
the operation of any existing law, or” and I submitted to the House that so far
as the words of article 8 go, even if these words are not there, all the
present laws shall be alive. They shall not be dead by the fact that article 8
exists in Part III. The article reads thus:
“All laws in force
immediately before the commencement of this Constitution in the territory of India
So that the real effect
which this Constitution wants to give is that so far as those laws are
inconsistent, they should be made inoperative, The rest will continue. So If
these words are not there — “affect the operation of any existing law, or”—that
would make no difference. If you examine the amendment to be moved by Dr.
Ambedkar, the result is the same because in his amendment the words “in so far
as it imposes” appear. Thus article 8 governs article 13 according to my
amendment as well as his. The amendment of Dr. Ambedkar is unnecessary if the
House accepts my amendment No. 454.
Mr. Vice-President: It
seems to me that if Dr. Ambedkar moves his amendment, then your amendment will
not be necessary at all.
Pandit Thakur Dass
Bhargava: My amendment will still be necessary as it deals with other
matters also.
Mr. Vice-President: I
do not wish to discuss the matter with you.
Pandit Thakur Dass
Bhargava: There are several clauses in this Constitution in which an
attempt has been made to keep the present laws alive as much as possible.
Article 8 is the first attempt. According to article 8 only to the extent of
inconsistency such laws will become inoperative. Therefore, any further attempt
was unnecessary.
In article 27 an attempt
has again been made to keep alive certain of the laws that come within the
purview of article 27 in the proviso. Then again not being content with this,
another section is there in the Constitution, namely, article 307, which reads:
“Subject to the other
provisions of this Constitution, all the laws in force in the territory of India
The laws in force are
defined in Explanation No. 1 and there is clause (2) which deals with certain
aspects of the question. Even if these sections were not there, even then the
general principle is that the law would continue in force unless repealed by
any enactment or declared illegal by any Court. Therefore, so far as the
continuance of the present law is concerned, the words “affect the operation of
any existing law, or” are surplus, unnecessary and futile. But I would not have
submitted this amendment before the House if these words were only surplus.
They have another tendency and that has been emphasized by the previous speaker.
There are good many amendments in the list of amendments to the same effect. I
have received representations from various bodies and persons who have said in
their telegrams and letters that these words should be removed, because the
apprehension is that as article 8 is part of the Constitution, so is article 13
part of the Constitution. In sequence article 13 comes later and numerically it
is of greater import. If article 8 is good law, so is article 13. As a matter
of fact article 13 is sufficient by itself, and all the present laws, it may
and can be argued, must be continued in spite of article 8. This is the general
apprehension in the public mind and it is therefore that Dr. Ambedkar has also
been forced to table an amendment No. 49 to my amendment No. 454.
This interpretation and
argument may be wrong; this may be unjustifiable; but such an argument is
possible. In my opinion the law must be simple and not vague and
ununderstandable. Therefore these mischievous and misleading words should be taken
away. As they have further the effect of misleading the public I hold that
these words, unless taken away, shall not allay public fear.
When I read these
different sections from 9 to 13 and up to 26, and when I read of these
Fundamental Rights, to be frank I missed the most fundamental right which any
national in any country must have viz., the right to vote.
Mr. Vice-President: That
is not the subject matter of the present discussion. The honourable Member
should confine his remarks to his amendment.
Pandit Thakur Dass
Bhargava: In considering article 15 also the House will come to the
conclusion that the most important of the Fundamental Right of personal
liberty and life has not been made justiciable nor mentioned in article
13. If the House has in its mind the present position in the country, it will
come to the conclusion that the present state of things is anything but
satisfactory. Freedom of speech and expression have been restricted by sub-clause
(2). Fortunately the honourable Member Mr. Munshi has spoken before you
about deletion of the word sedition. If these words ‘affect the operation of
existing laws’ are not removed the effect would be that sedition would continue
to mean what it has been meaning in spite of the contrary ruling of the Privy
Council given in 1945. If the present laws are allowed to operate without being
controlled or governed by article 8 the position will be irretrievably
intolerable. Thus my submission is that in regard to freedom of speech and
expression if you allow the present law to be continued without testing it in a
court of law, a situation would arise which would not be regarded as
satisfactory by the citizens of India
Similarly, at present you
have the right to assemble peaceably and without arms and you have in 1947
passed a law under which even peaceable assemblage could be bombed without
warning from the sky. We have today many provisions which are against this
peaceable assembling. Similarly in regard to ban on association or unions.
The Honourable Dr. B.
R. Ambedkar: Is it open to my honourable Friend to speak generally on
the clauses?
Mr. Vice-President: That
is what I am trying to draw his attention to.
The Honourable Dr.
B. R. Ambedkar: This is an abuse of the procedure of the House. I
cannot help saying that. When a member speaks on an amendment, he must confine
himself to that amendment. He cannot avail himself of this opportunity of
rambling over the entire field.
Pandit Thakur Dass
Bhargava: I am speaking on the amendment; but the manner in which Dr.
Ambedkar speaks and expresses himself is extremely objectionable. Why should he
get up and speak in a threatening mood or domineering tone?
Mr. Vice-President: Everybody
seems to have lost his temper except the Chair. (Laughter). I
had given a warning to Mr. Bhargava and, just now, was about to repeat it when
Dr. Ambedkar stood up. I am perfectly certain that he was carried away by his
feeling. I do not see any reason why there should be so much feeling aroused.
He has been under a strain for days together. I can well understand his
position and I hope that the House will allow the matter to rest there.
Now, I hope Mr. Bhargava
realises the position.
Pandit Thakur Dass
Bhargava: I will speak only on the amendment. But when a Member speaks
on an amendment, it is not for other members to decide what is relevant and
what is not.
Mr. Vice-President: I
was about to say so, but I was interrupted.
Pandit Thakur Dass
Bhargava: Sir, I repeat that unless and until these offending words
are removed and if the present law is allowed to continue without the validity
of the present laws being tested in any court, the situation in the country
will be most unsatisfactory. I am adverting to the present law in order to
point out that it is objectionable and if it continues to have the force of
law, there will be no use in granting Fundamental Rights. Therefore I am
entitled to speak of the Fundamental Rights. I will certainly not speak if you
do not allow me, but I maintain that whatever I was and am saying is perfectly
relevant. (Hon. Members: ‘Go on’). Sir, if I do not refer to the situation in
the country and to the fact that this law does not allow the present state of
tension in the country to be moved, what is the use of the Fundamental Rights.
I ask.
Mr. Vice-President: Kindly
remember one thing which is that you may refer to it in a general manner and
not make that the principal point of your speech on this occasion. You may
refer to all that in such a way as to adopt a via media where your purpose will
be served without taking up more time than is actually necessary.
Pandit Thakur Dass
Bhargava: I am alive to the fact that it is a sin to take up the time
of the House unnecessarily. I have been exercising as much restraint as
possible. I thank you for the advice given by you. I will not refer to the
present situation also if you do not like it.
But a few days ago the
Honourable Sardar Patel, in a Convocation Address delivered by
him, told the whole country that the labourer in the field and the ordinary man
in the street has not felt the glow of India India
As regards the amendment
for the addition of the word ‘reasonable’ I will beg the House kindly to
consider it calmly and dispassionately. We have heard the speeches of Sardar Hukam Singh and Mr. Mahboob Ali Baig.
Both of them asked what would happen to the Fundamental Rights if the
legislature has the right to substantially restrict the Fundamental Rights?
That is quite true. Are the destinies of the people of this country and the
nationals of this country and their rights to be regulated by the executive and
by the legislature or by the courts? This is the question of questions. The
question has been asked, if the Legislature enacts a particular Act, is that
the final word? If you consider clauses (3) to (6) you will come to the
conclusion that, as soon as you find that in the Statement of Objects and
Reasons an enactment says that its object is to serve the interests of the
public or to protect public order, then the courts would be helpless to come to
the rescue of the nationals of this country in respect of the restrictions.
Similarly, if in the operative part of any of the sections of any law it is so
stated in the Act, I beg to ask what court will be able to say that, as matter
of fact the legislature was not authorised to enact a particular law. My
submission is that the Supreme Court should ultimately be the arbiter and should
have the final say in regard to the destinies of our nationals. Therefore, if
you put the word ‘reasonable’ here, the question will be solved and all the
doubts will be resolved.
Sir, one speaker was
asking where the soul in the lifeless article 13 was? I am putting the soul
there. If you put the word ‘reasonable’ there, the court will have to see
whether a particular Act is in the interests of the public and secondly whether
the restrictions imposed by the legislatures are reasonable, proper and necessary
in the circumstances of the case. The courts shall have to go into the question
and it will not be the legislature and the executive who could play with the
fundamental rights of the people. It is the courts which will have the final
say. Therefore my submission is that we must put in these words “reasonable” or
“proper” or “necessary” or whatever good word the House likes. I understand
that Dr. Ambedkar is agreeable to the word “reasonable”. I have therefore put
in the word “reasonable” to become reasonable. Otherwise if words like “necessary”
or “proper” had been accepted, I do not think they would have taken away from
but would have materially added to the liberties of the country. Therefore I
respectfully request that the amendment I have tabled maybe accepted so that
article 13 may be made justiciable. Otherwise article 13 is a nullity. It is
not fully justiciable now and the courts will not be able to say whether the
restrictions are necessary or reasonable. If any cases are referred to the
courts, they will have to decide whether restriction is in the interests of the
public or not but that must already have been decided by the words of the
enactment. Therefore the courts will not be able to say whether a fundamental
right has been infringed or not. Therefore my submission is that, if you put in
the word “reasonable”, you will be giving the courts the final authority
to say whether the restrictions put are reasonable or reasonably necessary or
not. With the words, I commend this amendment to the House.
“that with reference to
amendment No. 454......”
Shri H. V. Kamath: On
a point of order, Sir, has amendment No. 454 been moved?
Mr. Vice-President: Please
continue.
The Honourable Dr.
B. R. Ambedkar:
“with reference to
amendment No. 454 of the List of amendments—
(i) in clauses (3), (4), (5) and (6) of article 13,
after the words ‘any existing law’ the words ‘in so far as it imposes’ be
inserted, and
(ii) in clause (6) of article 13, after the words ‘in
particular’ the words ‘nothing in the said clause shall affect the operation of
any existing law in so far as it prescribes or empowers any authority to
prescribe, or prevent the State from making any law’ be inserted.”
Syed Abdur
Rouf (Assam: Muslim): On a point of order, Sir, I think that Dr.
Ambedkar’s amendment cannot be an amendment to amendment No. 454. Amendment No.
454 seeks to delete clauses (2), (3), (4), (5) and (6), whereas Dr. Ambedkar’s
amendment seeks to insert some words in those clauses and cannot therefore be
moved as an amendment to an amendment.
Mr. Vice-President: It
seems to me that what Dr. Ambedkar really seeks to do is to retain the original
clauses with certain qualifications. Therefore I rule that he is in order.
Shri H. V. Kamath: This
will have the effect of negativing the original amendment.
Mr. Vice-President: Kindly
take your seat.
The Honourable Dr.
B. R. Ambedkar: From the speeches which have been made on article 13
and article 8 and the words “existing law” which occur in some of the provisos
to article 13, it seems to me that there is a good deal of misunderstanding
about what is exactly intended to be done with regard to existing law. Now the
fundamental article is article 8 which specifically, without any kind of
reservation, says that any existing law which is inconsistent with the
Fundamental Rights as enacted in this part of the Constitution is void. That is
a fundamental proposition and I have no doubt about it that any trained lawyer,
if he was asked to interpret the words “existing law” occurring in the sub-clauses
to article 13, would read “existing law” in so far as it is not inconsistent
with the fundamental rights. There is no doubt that is the way in which the phrase
“existing law” in the sub-clauses would be interpreted. It is unnecessary to
repeat the proposition stated in article 8 every time the phrase “existing law”
occurs, because it is a rule of interpretation that for interpreting any law,
all relevant sections shall be taken into account and read in such a way that
one section is reconciled with another. Therefore the Drafting Committee felt
that they have laid down in article 8 the full and complete proposition that
any existing law, in so far as it is inconsistent with the Fundamental Rights,
will stand abrogated. The Drafting Committee did not feel it necessary to
incorporate some such qualification in using the phrase “existing law” in the
various clauses where these words occur. As I see, many people have not been
able to read the clause in that way. In reading “existing law”, they seem to
forget what has already been stated in article 8. In order to remove the
misunderstanding that is likely to be caused in a layman’s mind, I have brought
forward this amendment to sub-clauses (3), (4), (5) and (6). I will read for
illustration sub-clause (3) with my amendment.
“Nothing in sub-clause (b)
of the said clause shall affect the operation of any existing law in so far as
it imposes, or prevent the State from making any law, imposing in the interests
of public order.”
I am accepting Mr.
Bhargava’s amendment and so I will add the word “reasonable” also.
“imposing in the interests
of public order reasonable restrictions on the exercise of the right conferred
by the said sub-clause.”
Now, the words “in so far
as it imposes” to my mind make the idea complete and free from any doubt
that the existing law is saved only in so far as it imposes reasonable
restrictions. I think with that amendment there ought to be no difficulty in
understanding that the existing law is saved only to a limited extent, it is
saved only fit is not in conflict with the Fundamental Rights.
Sub-clause (6) has been
differently worded, because the word there is different from what occurs in sub-clauses
(3), (4) and (5). Honourable Members will be able to read for themselves in
order to make out what it exactly means.
Now, my friend, Pandit
Thakur Dass Bhargava entered into a great tirade against the Drafting Committee,
accusing them of having gone out of their way to preserve existing laws. I do
not know what he wants the Drafting Committee to do. Does he want us to say
straightaway that all existing laws shall stand abrogated on the day on which
the Constitution comes into existence?
Pandit Thakur Dass
Bhargava: Not exactly.
The Honourable Dr.
B. R. Ambedkar: What we have said is that the existing law shall stand
abrogated in so far as they are inconsistent with the provisions of this
Constitution. Surely the administration of this country is dependent upon the
continued existence of the laws which are in force today. It would bring down
the whole administration to pieces if the existing laws were completely and
wholly abrogated.
Now I take article 307. He
said that we have made provisions that the existing laws should be continued
unless amended. Now, I should have thought that a man who understands law ought
to be able to realize this fact that after the Constitution comes into
existence, the exclusive power of making law in this country belongs to
Parliament or to the several local legislatures in their respective spheres.
Obviously, if you enunciate the proposition that hereafter no law shall be in
operation or shall have any force or sanction, unless it has been enacted by
Parliament, what would be the position? The position would be that all the laws
which have been made by the earlier legislature, by the Central Legislative
Assembly or the Provincial Legislative Assembly would absolutely fall to pieces,
because they would cease to have any sanction, not having been made by the
Parliament or by the local legislatures, which under this Constitution are the
only body which are entitled to make law. It is, therefore, necessary that a
provision should exist in the Constitution that any laws which have been
already made shall not stand abrogated for the mere reason that they have not
been made by Parliament. That is the reason why article 307 has been introduced
into this Constitution. I, therefore, submit, Sir, that my amendment which
particularizes the portion of the existing law which shall continue in
operation so far as the Fundamental Rights are concerned, meets the difficulty,
which several honourable Members have felt by reason of the fact that they find
it difficult to read article 13 in conjunction with article 8. I therefore,
think that this amendment of mine clarifies the position and hope the House
will not find it difficult to accept it.
(Amendment
No. 50 to amendment No. 454 was not moved.)
(Amendments
Nos. 455, 469, 475 and 481 were not moved.)
Mr. Vice-President: Then
we shall take up amendment No.485, first part. The House can well realize that
I am going through a painful process in order to shorten the time spent on
putting the different amendments to the vote.
Syed Abdur Rouf: I
want the first part of the amendment to be put to the vote.
Mr. Vice-President: Then
we come to another group, 456,472, 484 and 495.
(Amendments
Nos. 456, 472, 484 and 495 were not moved.)
Mr. Vice-President: The
next group consists of amendments Nos. 457, 466, 473 and 494.
(Amendments
Nos. 457, 466, 473 and 494 were not moved.)
Mr. Vice-President: Then
amendment No. 458 standing in the name of Mr. Mohd. Tahir and Saiyid Jafar
Imam.
Shri M. Ananthasayanam
Ayyangar: That has already been covered by Mr. Mahboob Ali Baig’s
amendment.
Mr. Vice-President: Still,
it would depend upon the Mover.
“That in clause (2) of
article 13, after the word ‘sedition’ the words ‘communal passion’ be inserted.”
Now, Sir, we find that
under this clause we are giving powers to the State to make laws as against
certain offences such as libel, slander, defamation, sedition and similar
offences against the State. Now I want that these words “communal passion” be
also added after the word “sedition”—which means, agitating or exciting the
minds of one community as against the other.
These words, Sir, libel,
slander, defamation, sedition, are the common words found in the Indian Penal
Code and fortunately or unfortunately, we find that this word does not find a
place in the Indian Penal Code. The reason is very simple, because, the Indian
Penal Code and the old laws were framed by a Government which was foreign to
us. Now, this is the time when we must realise our merits and demerits. We know
that the agitation and the excitement of communities against communities have
done a great loss and disservice to our country as a whole. Therefore, Sir, I
think that the addition of this word is necessary. To tell the truth, I would
say that if in our country which is now an independent country, we are really
sincere to ourselves, this word also must find a place in the Constitution. I
would request and appeal to Dr. Ambedkar and the House as a whole to give sound
reasoning and due consideration for the addition of this word.
At the end, Sir, I may
submit that an amendment has been moved by Mr. Munshi and I do not know whether
it is going to be accepted or not. In case that amendment is going to be
accepted by the House. I would appeal that this word may be given a place in
that amendment or wherever it is found suitable. With these words. Sir, I move.
Mr. Vice-President: We
come next to amendment No. 459. It is in the name of Mr. Thomas. It is verbal
and therefore disallowed.
Next we take up amendments
nos. 460, 461 and the second part of 462. I would allow amendment No. 461 to be
moved because that I regard as most comprehensive of the three. That is covered
by Mr. Munshi’s amendment. Is amendment No.460 moved?
Pandit Thakur Dass
Bhargava: I do not want to move it.
Mr. Vice-President: Amendment
No. 462; Mr. Kamath.
Shri H. V. Kamath: It
is covered by amendment No. 461.
Mr. Vice-President: Amendment
No. 462, first part. I was dealing with the second part just now. The first
part is more or less a verbal amendment and is disallowed.
Then, amendments Nos. 463
and 464 coming from two different quarters are of similar import. Amendment No.
464, standing in the name of Shri Vishwambhar Dayal Tripathi may be moved.
(Amendment
No. 464 was not moved.)
Mr. Vice-President: What
about amendment No. 463, in the name of Giani Gurmukh Singh Musafir?
Giani
Gurmukh Singh Musafir: Not moving, Sir.
Mr. Vice-President: Then,
we take up amendments Nos. 467 and 474. Amendment No. 467 may be moved. It
stands in the name of Mr. Syamanandan Sahaya.
“That in clause (3)
of article 13, the word ‘restrictions’ the words ‘for a defined period’ be
added.”
Sir, in moving this
amendment before the House, what was uppermost in my mind was to see whether
actually even in the matter of the three freedoms so much spoken of, namely,
the freedom of speech, freedom of association and freedom of movement, we had
really gone to the extent that every one desired we should. I must admit that I
did not feel happy over the phraseology of the clauses so far as this general
desire in the mind of every body, not only in this House, but outside,
obtained. I will, Sir, refer to the wording of sub-clause (b) of clause (1) of
article 13. This sub-clause lays down that all citizens shall have the right to
assemble peaceably and without arms. This is the Fundamental Right which we are
granting to the people under the Constitution. Let us see how this fits in with
clause (3) of article 13 which is the restricting clause. Clause (3) lays down
that nothing in sub-clause (b) of the said clause (1) shall affect the
operation of any existing law, or prevent the State from making any law,
imposing in the interests of public order restrictions on the exercise of the
right conferred by the said sub-clause, Sir, the only right which we are giving
by sub-clause (b) is the right to assemble peaceably and without arms. This
right to assemble is not a general right of assembly under all conditions. To
assemble peaceably is the first condition precedent and there is also a second
condition. That condition is that the assembly should be without arms. On the
top of these conditions we are laving down in sub-clause (3) that there shall
be a further restricting power in the hands of the State. I would much rather
that clauses (3) and (4) did not form part of our Constitution. But, if the
Drafting Committee and the other people who have considered the matter
carefully think that it is necessary to lay down restrictions even in the
matter of assembling peaceably and without arms, I might respectfully submit
that it would be necessary to further restrict this restricting power by saying
that any law restricting this power must be for a specified period only. I do
not think the House will agree that any State should place on the statute book
a permanent law restricting this Fundamental Right of peaceful assembly.
The most that the
Constitution could accommodate a particular Government at a particular time
under a particular circumstance was to give it the power to restrict this right
under these conditions but for a specified and defined period only and that I
submit, Sir, is the purpose of my amendment. The best interpretation that one
could put on this clause is that the Drafting Committee has erred too much on
the cautions side in this matter and they have probably kept the Government too
much and the citizens too little, in view. I will submit that both in sub-clauses
(3) and (4) the words ‘for a defined period’ should be added in order that if a
State at any time has to pass legislation to restrict these rights, they may do
so only for a period. It does not mean that once a State has passed such a
legislation it is debarred from following it up by a second legislation in time
if necessary but we must lay down in the Constitution that we shall permit of
no such restrictive law to be a permanent feature of the law of the land. A
State should not be empowered to pass a legislation restricting permanently
peaceful assembly and assembly without arms. I think such a general power in
the armoury of any State, however popular or democratic, would not be
desirable. In the larger interests of the country, and particularly at the
formative stage of the country, to give such wide powers in the hands of the
State and with regard to such Fundamental rights as, freedom of speech, freedom
of assembly and freedom of movement would, I believe, be harmful and result in
the creation of a suffocating and stuffy atmosphere as opposed to the free air
of a truly free country. Sir, I move the amendment and commend it to the
acceptance of the House.
(Amendment
No. 470 was not moved.)
Mr. Vice-President
: 471 is disallowed as verbal. Nos.476 and 477 are of similar import.
I allow 476.
“That in clause (4)
of article 13, for the words ‘the general public’ the words ‘public order or
morality’ be substituted.”
These words are
inappropriate in that clause.
Mr. Vice-President: 477
is identical, 479, 480 and 486 are of similar import
(Amendments
Nos. 479, 480, and 486 were not moved.)
Mr. Vice-President: 482
and 483.
(Amendment
No. 482 was not moved.)
Mr. Vice-President: 483—Sardar Hukam Singh.
“That in clause (5) of
article 13, after the words ‘existing law’ the word ‘which is not repugnant to
the spirit of the provisions of article 8’ be inserted.”
The Honourable Dr.
Ambedkar has rightly appreciated our fears and we feel that is the object of
most of the amendments that have been moved Certainly there are fears in our
minds that if these articles stand independently—articles 8 and 13,—then there
is a danger of different constructions being put on them. Dr. Ambedkar has
emphasised that if relevant articles of the Constitution are in question, all
those articles that relate to one subject shall be taken into consideration
when some construction is going to be put by any Court and then article 8 would
govern because it says that “All laws in force immediately before the
commencement of this Constitution in the territory of India, in so far as they
are inconsistent with the provisions of this Part, shall to the extent of such
inconsistency, be void”. That we have adopted, and this is what we feel that it
should be made clear that certainly those parts which are inconsistent would be
void to that extent. If that is the object as Dr. Ambedkar has explained, then
why not make it clear in this section as well. Where is the harm? I do not see
that we would lose anything or that it would change the beauty of the
phraseology even if we make it clear that these provisions are subject to
article 8. This is to be admitted that there are certain laws in force just at
present that restrict the liberty of the people. For instance I can quote the
Land Alienation Act in Punjab . That allows
only certain castes to purchase land of their own caste and precludes other
castes to purchase that land. If this distinction were based on some economic
ground, if it were to be enacted that all small tillers’ rights would be
safeguarded and their small lands would not be alienable, we could understand
that alright and such a provision would be welcome. But when the discrimination
is there, we too feel that such a law should stand abrogated so far as it is
inconsistent with the provision in clause (5) or article 13. Because that gives
freedom to acquire hold and dispose of property and if that law remains—Land
Alienation Act, as it is and definition is not changed of the “agriculturist”,
there would be a conflict and there might be certain constructions by Court
which would be unfair. So if that is the object as Dr. Ambedkar has explained
that article 8 would govern, then we should make it clear and that is why I
have suggested that after the words ‘existing law’ the words ‘which is not
repugnant to the spirit of the provisions of article 8’ be inserted. That is my
object and it should be made clear beyond any doubt.
Mr. Vice-President: Then
we come to amendment No. 485, second part, standing in the name of Syed Abdur
Rouf, and the first part of amendment No. 488 standing in the joint names of
Dr. Pattabhi Sitaramayya and others. The latter seems to be the more
comprehensive of the two and may be moved.
(Amendment
No. 488 was not moved.)
Mr. Vice-President: Then
in that case, the second part of amendment No. 485, standing in the name of
Syed Abdur Rouf may be moved.
“That in clause (5)
of article 13, for the word ‘State’, the word ‘Parliament’ be substituted.”
Sir, in sub-clauses (d),
(e) and (f), we have got the most valuable of our Fundamental Rights. But
clause (5) seems to take away most of our rights, because States have been
given power to restrict, to abridge and even to takeaway the rights if and when
they like. We remember the word ‘State’ has been defined as to include even
local authorities etc. within the territory
of India
Mr. Vice-President: Then
amendments Nos. 487, 489 and 490 are of similar import. No. 487 may be moved.
(Amendment
No. 487 was not moved.)
Mr. Vice-President: Amendment
No. 489 standing in the joint names of Mr. Mohd. Tahir and Saiyid Jafar Imam.
“That in clause (5)
of article 13, the word ‘either’ and the words ‘or for the protection of the
interests of any aboriginal tribe’ be omitted.”
Sir, I am not going to
make any speech in this connection, but want only to submit that the removal of
these words would make the clause of a general character, which certainly
includes the safeguards of the interests of the aboriginal tribes as well. I
understand the Drafting Committee was also of this opinion, but I do not know why
this clause was worded in this manner. Anyhow, I think it better to delete the
words in the manner I have suggested.
Mr. Vice-President: Amendment
No. 490 is the same as the one now moved, and it need not be moved.
Amendment No. 488, second
part, and No. 491 are of similar import. Amendment No. 491, standing in the
name of Dr. Ambedkar may be moved.
“That in clause (5)
of article 13, for the word ‘aboriginal’, the word ‘scheduled’ be substituted.”
When the Drafting
Committee was dealing with the question of Fundamental Rights, the Committee
appointed for the Tribal Areas had not made its Report, and consequently we had
to use the word ‘aboriginal’, at the time when the Draft was made.
Subsequently, we found that the Committee on Tribal Areas had used the phrase “Scheduled
Tribes” and we have used the words “scheduled tribes” in the schedules which
accompany this Constitution. In order to keep the language uniform, it is
necessary to substitute the word “Scheduled” for the word “aboriginal”.
Mr. Vice-President: There
is, I understand, an amendment to this amendment, and that is amendment No. 56
of List I, standing in the name of Shri Phool Singh.
(Amendment
No. 56 of list I was not moved.)
Mr. Vice-President: That
means this amendment No. 491 stands as it is.
Then we come to amendment
No. 488.
(Amendment
No. 488 was not moved.)
“That in clause (6) of
article 13, for the words ‘public order, morality or health’, the words ‘the
general public’ be substituted.”
The words ‘public order,
morality or health’ are quite inappropriate in the particular clause.
“That after clause
(6) of article 13, the following new clause be added.
‘(7) The occupation
of beggary in any form or shape of person having sound physique and perfect
health whether major or minor is totally banned and any such practice shall be
punishable in accordance with law.’”
Sir, I have moved this
amendment for this reason that, if the House agrees with this amendment surely
it will result in solving to a great extent the difficulties of labour which
exist in our country. Our industries, which are very vital and in many places
have failed due to lack of labour, can flourish to a great extent. Besides, I
would like to state that in our country thousands, lakhs nay crores of
human beings will imbibe the spirit of self-reliance and self-respect. We see
that in our country many able-bodied persons who can work and can earn
their livelihood, are to be found begging on road sides. If you tell them that
they can work, that they can maintain themselves by earning their livelihood
and can do good to their country by their labour, they would say in reply “Sir,
this is our ancestral profession and we are forced to do it”. I would like
to say that there are so many countries on this earth: but if you look around,
you will find this ugly spot only on the face of our country. Therefore, I want
that there should be some such provision in our Constitution as would be
beneficial to our country. Obviously, those that are helpless, for instance
many of our unfortunate countrymen, who are blind lame and cannot use their
hands and feet, really deserve some consideration. In such cases begging on
these and other similar grounds may be justified. But even in this matter, I
would submit that the State should be responsible and some such institution or
home be founded in some places where they might be brought up, while those that
are able-bodied and healthy should be forced to work. By doing so, our labour
problem will be solved to a great extent and crores of human beings, who have
taken to begging as profession, would be prevented from doing so. This will
create in them the spirit of self-respect and self-reliance. Therefore, I hope
that Dr. Ambedkar will accept this amendment of mine and the House will also
help me by accepting it. With these words, I submit this amendment for the
consideration of the House.]*
The Assembly then
adjourned till Half Past Nine of the Clock on Thursday, the 2nd December 1948.
*[Translation of Hindustani speech.]*
Source: http://164.100.47.132/LssNew/cadebatefiles/C01121948.html
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Source: http://164.100.47.132/LssNew/cadebatefiles/C01121948.html
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